Of Caucasoids and Kin
Kennewick Man, Race, and Genetic Indigeneity in Bonnichsen v. United States
DNA Enters Dust Up Over Bones
A 9300-year-old skeleton uncovered on the banks of the Columbia River in Washington State is a treasure trove of information for anthropologists, with a projectile point in its pelvis and possible Caucasoid features. But American Indians are claiming the skeleton as an ancestor and plan to rebury it. However, a sliver of bone taken for age-testing may soon yield DNA, which may reveal whether the skeleton was ancestral to modern American Indians [Gibbons 1996:172].
INTRODUCTION: KENNEWICK MAN—THE ANCIENT ONE
I begin this chapter with the oft-repeated tale of the 1996 discovery of human remains in Washington State. At the end of July that year, two young men inadvertently discovered a human skull while walking along the banks of the Columbia River near Kennewick, Washington. They notified local authorities who, after a more thorough search, found not only a skull but also an almost complete human skeleton. A preliminary police investigation determined that the remains were not those of a recent victim, but rather of someone who had lived and died well before the end of the twentieth century. Dr. James Chatters and other consulting archaeologists first posited that the remains were those of a nineteenth century European male settler, but the later discovery of a projectile point embedded in the hip suggested otherwise (Chatters 2001). Preliminary carbon-dating tests put the age of the remains at approximately 9200 years old, making the “Kennewick Man,” as he was eventually dubbed by archaeologists and the media, among the earliest and most complete human skeletons ever found in North America.
By September 1996, the first of several controversies concerning the proper disposition of the remains emerged. Federal legislation, the Native American Graves Protection and Repatriation Act of 1990 (NAGPRA), recognized the right of American Indian tribes to have Native American remains and other cultural objects found on federal or tribal lands repatriated.1 Based on the age of the skeleton and the location in which it was discovered, a coalition of five local tribes appealed to the federal government and asked that the remains of Kennewick Man—whom the tribes called the Ancient One—be returned to them for immediate reburial in concert with their religious and cultural values.2 The tribal coalition maintained that Kennewick Man was an ancestor and that jurisdiction over his remains belonged to them under the rules of NAGPRA (Minthorn 1996). A group of archaeologists and physical anthropologists challenged the tribes’ claim to the remains, asserting that any reburial of Kennewick Man prior to a careful scientific investigation would be a profound loss not only to science but also to humanity as a whole.3 Further, the scientists contested the position that the remains were unequivocally “Native American” and could be easily linked to any of the five contemporary tribes. They suggested instead that Kennewick Man’s morphology—especially his “Caucasoid” or “European” features—pointed to a possibly pre-indigenous peopling of the Americas.4 This latter contention, and its accompanying racial idiom, was picked up by the media and was widely circulated in news pieces such as “Old Skull Gets White Looks” and “Is Kennewick Man ‘Asian’ or ‘European’?”5
In late 1996, the federal government, more specifically the Army Corps of Engineers, concurred with the tribal coalition that Kennewick Man was Native American under the NAGPRA statute and ordered the remains repatriated to the tribes for reburial without further scientific study. A group of eight plaintiff-scientists, led by anthropologist Robson Bonnichsen, challenged the ruling by filing suit in federal court (Bonnichsen v. United States).6 What followed over the ensuing eight years brought a series of issues into stark relief, including the rights of indigenous peoples under US law, the role of scientific conceptions of race and history, and the legitimacy and efficacy of NAGPRA. The question of what and who Kennewick Man was, and to whom he belonged, sparked a series of legal battles that continued for nearly a decade.7
The key legal issues in the Bonnichsen litigation hinged on whether or not the remains of Kennewick Man are in fact “Native American” as defined in NAGPRA. In 2004, the Ninth Circuit Court of Appeals upheld an earlier district court ruling that Kennewick Man did not fit the category of “Native American”: “Human remains that are 8340 to 9200 years old and that bear only incidental genetic resemblance to modern-day American Indians, along with incidental genetic resemblance to other peoples, cannot be said to the Indians’ ‘ancestors’ within Congress’s meaning” (Bonnichsen IV:5072).
Much has been written about the legal battles surrounding the remains.8 This chapter is not so much a commentary on the legal disposition of Kennewick Man, but rather a discussion of the Bonnichsen court’s legal decisions as they relate to ideas of genetics, indigeneity, and identity at the beginning of the twenty-first century. I provide a critical reading of documents—of evidentiary claims, scientific reports, legal analyses, and media accounts—in order to assess the simultaneous assertions and denials of indigeneity in the context of this case. More specifically, I explore the legal importance of “biological ancestry”—frequently constructed in the idioms of race and genetics—in establishing whether or not the remains of Kennewick Man could be linked to “a presently existing tribe, people, or culture to be considered Native American” (Bonnichsen IV; emphasis in original). What does it mean that human remains thought to be at least nine thousand years old, and thus clearly “pre-Columbian,” do not legally qualify as “Native American” in US courts? What does it mean to use “genetic resemblance” (or the absence thereof) as a legal marker of identity when no viable DNA was recovered from the remains of Kennewick Man? To answer these questions, I trace what I call genetic indigeneity as a marker of a discursive shift from a public, scientific, and legal understanding of indigeneity whose predominant metaphor is blood to one in which the predominant metaphor is genes. In the Bonnichsen decisions, the genetic becomes the proving ground of indigeneity and articulates with ideas of racial and morphological difference. As issues of race, ethnicity, and indigeneity are becoming newly entangled with contemporary ideas of the genetic (e.g., TallBear 2003, 2007), how are long-circulating idioms of racial science marshaled and reinvigorated in discourses of genetics?
INDIAN LEGAL IDENTITY
The legal history of Indian identity in the United States is both complex and contradictory. “Who is an Indian?” has been a key question in the United States since the mid-nineteenth century, one deeply bound to processes of Euro-American colonization (e.g., Brownell 2001; Meyer 1999:234). While this question is not an exclusively legal one, it has nevertheless dominated issues of federal Indian law. At various times throughout US legal history, establishing who is and is not Indian has been central to determining collective and individual identities. These identities are, in turn, tied to questions of land and resource distribution, property, inheritance, treaty payments, state and federal benefits, civil and criminal jurisdiction, tribal membership, and political rights (e.g., Biolsi 2001; Kauanui 2002; Ray 2006; Rohrer 2006; Sturm 2002; Turner Strong and Van Winkle 1996). The legal disposition of the remains of Kennewick Man introduces another dimension to the question of Indian identity at the turn of the twenty-first century. In the following sections, I offer a brief historical perspective on repatriation and anthropology in order to contextualize some of the terms and ideas circulating in the dispute over Kennewick Man. The debate over Kennewick Man and the meaning of “Native American” as articulated in the Bonnichsen litigation becomes another chapter in the long history of the question “Who is an Indian?” What marks this as especially important is the emergence of genetic indigeneity—even in the absence of genetics—as a key evidentiary marker of identity.
Arguably one of the most salient aspects of Indian legal identity in the United States has been, and continues to be, blood quantum. Determination of Indian identity both politically and culturally is often based on blood quantum, usually a measurement of “how much” of an individual’s “blood” (as a unit of heredity) has been inherited from Indian ancestors. While concepts of blood quantum have evolved over time, they have nevertheless been consistently associated with extant and emergent ideas of race in American society (see e.g., Garroutte 2003; Spruhan 2006; Sturm 2002). Because blood quantum, both in its conceptual and institutional forms, is so deeply ingrained in understandings of Indian identity, it must be seen as essential to struggles “for existence, resources, and recognition” (Turner Strong and Van Winkle 1996:554). In some ways, the legal battle over the identity of Kennewick Man is but another example of such struggles, deeply rooted in longstanding colonial legacies. Yet anthropologist Richard Warren Perry reminds us of “how new technologies have created new possibilities for the assertion of conflicting blood-and-soil identity claims, and new rhetorics of racial contestations” (2002:144). My purpose here is to use the Kennewick Man controversy as a case study in order to sketch some of the dimensions of these “new rhetorics of racial contestation” especially as they articulate with emergent idioms of race and genetics.
AMERICAN INDIANS, RACIAL SCIENCE, AND NAGPRA
Scientific claims to Indian dead have a political and cultural genealogy that scientists and their publics cannot be allowed to forget [Dumont 2003:124].
The passage of the Native American Graves Protection and Repatriation Act (NAGPRA) in 1990 marked an important moment in the history of US federal Indian law. NAGPRA was in response to longstanding critiques on the part of indigenous groups which challenged the historical and continued expropriation of American Indian remains and sacred objects.9 American Indian remains had long had a status different from the remains of other groups. While Anglo-American common law has historically protected the dead and associated funerary objects from pilfering and other forms of desecration, “it has been commonplace for public agencies to treat Native American dead as archaeological resources, property, pathological material, data, specimens, or library books, but not as human beings” (Trope and Echohawk 1998:179). Legal scholar Allison Dussias and others locate such practices in “the belief that the racial inferiority of Native Americans condemned them to extinction,” thus making “everything that belonged to Native Americans, from their land to the very bodies of their deceased family members” available for the taking (2005:72; see also Bieder 1986; LaVaque-Manty 2000; Trigger 1980, 2003).
While in the nearly twenty years since its passage NAGPRA has been the subject of extensive study and commentary (e.g., Hibbert 1998/1999; Mihesuah 2000; Pensley 2005; Riding In et al. 2004; Yasaitis 2005), there are two key points about the legislation necessary for the analysis here. The first is that NAGPRA itself was considered remedial legislation, in part meant to address the historic inequities found in law and in practice; thus, many scholars have suggested that any statutory or evidentiary ambiguities should be decided in favor of tribes (see e.g., Dussias 2005; Harding 2005; Ray 2006; Ripley 2005; Tsosie 1999). The second is that the scientific framework used to evaluate whether or not Kennewick Man was legally “Native American” under NAGPRA ironically emerges from the creation and study of those ill-gotten collections (see Dussias 2005; Highet 2005).10
Historian Robert E. Bieder has written extensively about how the collection of American Indian remains was central to the development of experimental practices and modes of inquiry in American anthropology (1986, 1998, 2000).11 For instance, Samuel Morton, a founding figure in American physical anthropology, believed in the existence of fundamental and measurable biological differences among human groups (see also Dussias 2005; Gould 1996; Lieberman 2001). He was also an empiricist who believed in the necessity of “genuine specimens” (especially crania) to study and to serve as proof of hierarchical taxonomies such as “The Five Races of Man”:
His search for human skulls of all races and his subsequent investigations led not only to the racial findings expressed in his Crania Americana, findings that would color racial thinking long after his death in 1851—but also laid the foundation for anthropological interest in the search for deceased Indians … eder 1998:164).
Thus, Morton’s legacy to physical anthropology was simultaneously conceptual and material. Both his analytical apparatus and his collection practices helped shape the discipline. The legacy of Morton, and of those who followed, is important for contextualizing the kinds of scientific reasoning put forth by the plaintiffs in the Bonnichsen litigation, especially in terms of the operation of racialized categories.12
There is an extensive critical literature on the historical development of racial science in anthropology, a literature beyond the scope of this chapter.13 What I wish to recover from these accounts is the centrality (1) of collecting and of comparative evolutionary frameworks, and (2) of racial difference in general, and of indigenous difference in particular, to the conception and practice of physical anthropology (e.g., LaVaque-Manty 2000).14 While there is nothing in the record to suggest that Chatters or Bonnichsen and the other plaintiffs in any way ally themselves with the clearly racist findings of Morton and other nineteenth century racial scientists, I nevertheless want to make clear the connection between the historical and material conditions through which the disciplines of physical anthropology emerge and the racialist assumptions embedded in contemporary forms of analysis.15 In other words, terms such as “Caucasoid,” “Mongoloid,” or even “Native American” do not emerge ex nihilo but are rather created in, and re-materialized through, historically specific circumstances. Such racialist assumptions not only shape the object of study (the remains of Kennewick Man) and the conditions of that study (the categories and modes of inquiry used to understand the remains) but also set the terms of the legal disposition of the remains. In other words, the question “Who is an Indian?” in the context of NAGPRA is itself is rooted in a variety of nineteenth century legacies in both law and science.
This tension between a foundational racialism that motivates research and a self-conscious awareness of the limitations of biological concepts of race is present in other scientific fields including biomedical research and population genetics. In her discussion of race and genomics in the controversial Human Genome Diversity Project (HGDP), Jenny Reardon critiques the prevailing notion that racial science met its demise in the decades following the Second World War:
Far from marking the decline of racial science and the ascendancy of claims about human equality, subtle differences among statements about the biological meaninglessness of race acted to shore up the power of biological experts and political actors to differentiate humans racially for the purposes of knowing and governing them. Thus, I argue, we should not be surprised when contemporary claims about the biological meaninglessness of race are accompanied by claims about the meaningfulness of race, as it is the former that have often enabled the latter (2004:40; emphasis in original).
Assertions of the simultaneous meaningfulness and meaninglessness of biological race were also prevalent in the discourse surrounding the fight over Kennewick Man. In the following example, Chatters discusses his use of the forensic anthropological paradigm:
Hence, the groupings Mongoloid, Caucasoid, and Negroid should not properly be thought of as races. The distinctions we impose on our species are therefore arbitrary and have more social import than biological meaning in a taxonomic sense